VA Supreme Court Rejects Increasing Right to Additional Discovery

In a surprising move, the Virginia Supreme Court did not adopt any of the recently proposed changes to a defendant’s right to discovery in Virginia criminal cases. While each party in a civil case has a right to nearly every non-privileged document that the other party possesses, a defendant’s right to the prosecution’s evidence in a criminal case is severely curtailed. Recognizing that Virginia lags behind most other states in providing discovery in these cases, a Special Committee on Criminal Discovery Rules issued proposed changes to the current discovery framework.

These changes were welcome news to the defense bar, as they allowed for greater access to fundamental information held by the Commonwealth, including police reports and witness information–information which is routinely required in many other states. Other proposed changes included an express obligation on the prosecution to provide exculpatory information and a duty for each side to provide a witness list prior to trial.

Despite hundreds of public comments largely in favor of, though some strongly against, the changes, the Virginia Supreme Court left Virginia’s discovery framework in tact. Virginia Chief Justice Donald W. Lemons said that “such fundamental and sweeping changes in the system, especially in light of the strong public comments opposing them, seem unwise at this time.” (See Washington Post Article here.)